ANOTHER PRIVILEGE GONE.

Dunstan Times, Issue 1218, 3 July 1885, Page 3

ANOTHER PRIVILEGE GONE.

sßy the decision of the Court in the case of Jonas v. Ford, another incursion has been made into the once in» voilable privileges of the men at law . . . . A man named Ryan ab sconded from New Zealand with a large sum of money belonging to his creditors. With him there came to Melbourne a woman who had always lived with him as his wife, but who subsequently declared her proper name to be Ford. This person deposited in the London Chartered Bank a sum of LCOO, so that when both she and Ilyan were arrested and taken back to New Zealand, the creditors secured only the money actually found in their posses sion, amounting to L 1,400. No one suspected the deposit, and the money remained in the bank untouched. Ultimately, however, the trustee appointed by the creditors got wind of this money, and applied for it. Mrs Ford also claimed it as property bes longing to her, and declared it was no part of the money which had been taken by her supposed husband from New Zealand, but came from a totally different source. The bank paid the money into Court, and left the parties to fight the case out among themselves. A witness was called by the trustee of the cieditors whom Mrs Ford had consulted professionally as to drawing the money out of the bank. She had informed this witness that she had “ slewed”- the creditois,and offered him a fee of ton guineas to assist her and keep her counsel. According to the old decisions we have alluded to above this communication would have been privileged. The employment might have been refused, but the attorney’s mouth would have been shut. Nevertheless the evidence was all important to prove that Mrs Ford’s story of how she came by the money was untrue. Fortunately for the creditors, a case involving the exact point was decided in England only last November, and entirely upset the old law laid down by Chief Justice Dallas. With the progress of thought incident to the nineteenth century even the most conservative of Judges must go. In solemn conclave the question of privi lege was threshed out, first before five Judges, and afterwards, “on account of its great importance,” before ten, with the result that privilege in re gard to communications made to an attorney has been largely curtailed. Acting on this authority, our own Judges decided that the communication made by Mrs Ford could be given in evidence by the attorney (or attorney’s clerk, which is the same thing). The verdict went against Mrs Ford, and the creditors got back their money. The state of the law at present established by both the English and the Victorian decisions is that, while communications between attorney and client remain privileged under ordinary circumstances, the moment any element of fraud appears that privilege at once vanishes. A short passage from the English judgment illustrates both the length to which the question had been carried (since the Judges had to decide upon it), and the advance of modern thought in dealing with old principles. “ The question,” said Judge Stephen, “ therefore is whether if a client applies to a legal adviser for advice intended to facilitate or to guide the client in the commission of a crime or fraud, the legal adviser being ignorant of the

purpose for which his advice is wanted, the communication between the two is privileged. If it were, the result would bo that a min intending to commit treason or murder might safely take legal advice for the pur* pose of enabling himself to do so with impunity, and that the solicitor to whom the application was made would not be at liberty to give information against his client. Consequences so monstrous reduce to an absurdity any principle or rule in which they are in* volved.” Po we should think; the wonder is that the monstrosity was not discovered till the year of grace 188-i.— Aije.